June 12, 2020

Parisien v Omni Indem. Co. (2020 NY Slip Op 50726(U))

https://www.beynensonlaw.com/case-law/parisien-v-omni-indem-co-2020-ny-slip-op-50726u/

Court
Appellate Term, Second Department
Decided
June 12, 2020
Citation
2020 NY Slip Op 50726(U) · 67 Misc 3d 141(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Policy issues
Cite as
Parisien v Omni Indem. Co., 67 Misc 3d 141(A), 2020 NY Slip Op 50726(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish that the assignor was not an innocent third party protected from retroactive rescission under Pennsylvania law. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment based on rescission of the automobile policy. Pennsylvania law's applicability was uncontested. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, an insurer may rescind an automobile policy as to an insured who materially misrepresented facts, but not as to innocent third parties injured through no fault of their own. The insurer's papers did not establish that the assignor fell outside that protection. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion.

Reported in New York Official Reports at Parisien v Omni Indem. Co. (2020 NY Slip Op 50726(U))

[*1]
Parisien v Omni Indem. Co.
2020 NY Slip Op 50726(U) [67 Misc 3d 141(A)]
Decided on June 12, 2020
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 12, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2018-1327 K C

Jules Francois Parisien, M.D., as Assignee of Olaveria, Eduardo, Respondent,

against

Omni Indemnity Company, Appellant.


Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 17, 2018. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that, upon the application of Pennsylvania law, there was a lack of coverage due to the rescission ab initio of the automobile insurance policy in question. By order entered April 17, 2018, the Civil Court denied both motions. Defendant appeals from so much of the order as denied its cross motion. We note that no issue is raised on appeal regarding the applicability of Pennsylvania law.

Under Pennsylvania law, an insurer has a common-law right to rescind a policy of automobile insurance (see 40 Pa Cons Stat §§ 991.2002, 991.2004; Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]; Healthway Med. Care, P.C. v Infinity Group, 54 Misc 3d 132[A], 2017 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a material misrepresentation, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (Erie Ins. Exch. v Lake,543 Pa at 375, 671 A2d at 687; see also Island Life Chiropractic, [*2]P.C. v Infinity Group, 55 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). The papers defendant submitted in support of its cross motion fail to set forth facts establishing, as a matter of law, that the assignor was not an innocent third party (see Island Life Chiropractic, P.C. v Infinity Group, 55 Misc 3d at 43; cf. Optimal Well-Being Chiropractic, P.C. v Infinity Ins. Corp., 46 Misc 3d 27 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, defendant failed to establish its entitlement to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 12, 2020

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